Aadhaar Hearing [Day 6]: Shyam Divan argues on the issues of Identity and Savings; To conclude his submissions on next date

On Day 6 of the Aadhaar hearing, Senior Advocate Shyam Divan continued his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. When Shyam Divan argued on the point of centralisation, a discussion took place between the Bench and Shyam Divan on the issue. Read on to know what all happened on Day 6 of the Hearing:

Discussion on the specific problems with Aadhaar:

• Chandrachud, J: There are multiple interfaces between individual and State such as tax, electricity bills etc. Suppose instead of Aadhaar you are required to use a PAN card. How would that be different? Your argument seems to be a problem with centralisation. Is it the centralisation that what makes it unconstitutional? Because every time I use a device with an IP, say to book an Uber, my location can be tracked. What is the specific additional problem with Aadhaar?
• Shyam Divan: The first problem as you have correctly pointed out is centralisation. Normally, you have information silos.
• Chandrachud, J: But they are all tracking your location, that is a common denominator.
• Shyam Divan: This is where the ECHR judgment in Digital Rights judgment comes in. They said “you cannot *maintain* logs.” Why? Because it is one thing if a particular utility provider knows about your location. But what happens with centralisation is you have complete tracking. In the present regime that allows tracking of IP + ID. Look at the situation 25 years from now. If we fail in this case, 25 years from now we will be addressing “Aadhaar judges.” Because there is a full log. Right now – schools and scholarships. They are planning for airports as well. At this point you have multiple IDs. Take the PAN card example. You give one ID, you are identified, you avail your benefit. There is satisfaction with respect to the authority, and there’s no question of surveillance. I’m not saying that somebody is sitting behind the screen and watching. It’s about the architecture of the program and this is why it’s never been under proper scrutiny. No other free liberal society in the world has tried this because it simple wouldn’t pass muster.
• Chandrachud, J: What if someone else like a bank offered to make all your transactions for you and you set standing instructions, like for insurance payments, bill payments, car instalments etc. What is the qualitative difference? My bank maintains a central repository of all my transactions. We’re constantly entering into a world of surrendering our identity – it may be a choice but it’s still a central database. If we’re willing to surrender our identity, then does the fact that the State is collecting information make a difference? would it be satisfactory if there were norms governing collection and use?
• Shyam Divan:
  • This is not a question of checks and balances, because the architecture is that of pervasive surveillance. I am alive to the concern that you cannot go back to the pre-digital age, and this is not what I am suggesting.
  • Aadhaar is premised on the assumption that we are a nation of knaves. This represents a complete breakdown of trust, because the presumption is that if you don’t have Aadhaar, then you’re a crook.
  • An individual is entitled to develop her personality without being tracked and registered. In a liberal democracy, routine everyday transactions cannot be made conditional on a barter of your biometric information.
  • Elements of Limited Government:
    • An element of limited government is that it is a shared enterprise between the people and the government.
    • Another element of limited government is autonomy and the idea of space – the idea that I can do something without the State necessarily knowing.
    • A final element of limited government is the idea of giving citizens a choice in establishing an identity.
  • State has advanced two justifications – giving people an identity, and savings. Both these claims are undermined by the State’s own documents.
    • Identity:
      • Introducer System:
        • Aadhaar enrolment system requires a pre-existing identity, and if you don’t have it, then an Introducer is required. According to government statistics, the number of people who used the Introducer system is 0.03% (a little over 2 lakhs). Consequently, the question is that can such small numbers justify such a vast an invasive system. We are not saying that identity is not important for the small number who didn’t have it, but the point is whether it is justified to resort to Aadhaar.
        • We are only pointing out that one of the State’s core justifications for this project is not borne out by the facts. (When Bhushan, J said that numbers will not make a difference either way.)
      • Types of malpractices:
        • The first is that you fake your data and claim to be eligible when you’re not.
        • Second, quantity fraud.
        • Third, identity fraud: Aadhaar can at best only deal with the third type of fraud.
    • Savings:
      • World Bank Claim:
        • The World Bank has estimated a saving of 11 billion dollars per annum. Union has relied on this. Union of India has said that the World Bank is independent and will not indulge in puffery.
        • Recently Paul Romer resigned from the World Bank citing no integrity in the data. This is one excellent example. There is some dispute over what exactly the pleadings were with respect to the issue of puffery.
        • The State’s claims are based on the enrolment percentages, which amount to puffery, because enrolment has been not limited to citizens, and there has been no oversight.
        • The World Bank claim footnoted a 2011 article which made no such claims. That article used the 11 billion figure to talk about transfers from five schemes, and talked only about the value of the transfers. Therefore, the World Bank claim stands discredited. The figure was the total disbursement. There was no mention of savings.
        • Maybe the World Bank didn’t know, but the government official who signed the affidavit surely should have known that this figure is wrong.
      • MGNREGA:
        • The Union has claimed DBT benefits and Aadhaar savings as 11741 crores. UIDAI records show that the 74 lakhs NREGA job cards were seeded with Aadhaar, out of which out 67000 were found to be bogus. These were all in Tripura. A Lok Sabha question was asked, where the figure given was 63000. Aadhaar, therefore, eliminated 63000. The maximum savings this would yield is 127 crores. This is less than 5% of the claimed saving of 3000 crores.
        • In an RTI questions were asked about the scale of savings and the method. No specific methodology was provided. It was just said that savings are in terms of efficiency and reducing delay. Nothing about fraud. In another year 93000 job cards were canceled, but many far reasons other than them being fake. In an RTI reply it was found that the number of cards canceled for being fake were 1%.
      • LPG Subsidies:
        • The LPG linking began as a pilot in 2014. The figures given in UIDAI affidavit is 14000 crores of savings. However, cabinet secretariat minutes show an annual subsidy saving of 91 crores. Compare 14000 with 91. What happened was that long before Aadhaar, the NIC came up with a scheme to weed out duplicates. The savings occurred long before Aadhaar.
        • The CAG report is specifically with respect to the implementation of the LPG linking scheme, and the CAG has specifically said that you cannot attribute the savings to the Aadhaar linking, because the savings come from the NIC’s earlier program to weed out duplicates. In fact, the CAG specifically said that part of the savings is because of people not linking Aadhaar. This actually points to exclusion. So what really is the scale of the savings then?
      • Starvation deaths because of Aadhaar Linking Failures:
        • An affidavit by a fieldworker on the Jharkhand NREGA program recounts starvation deaths that occurred in Jharkhand because of Aadhaar linking failures.
        • The affidavit recounts the testimonies of family members who said that individuals gradually starved to death because they were dependent on their grain entitlement, which in turn was linked to Aadhaar.
        • It recounts villagers” testimony about ration dealers tampering with the Aadhaar grain records to hide leakages.
        • It recounts testimony about pension not being credited because Aadhaar was linked to more than one account, and the pension was sent elsewhere. The bank manager said that it was a technical glitch.

Shyam Divan will conclude his arguments on the next date of hearing and the case will be taken forward by other counsel for the petitioners. Bench will continue the hearing on next Tuesday 06.02.2018.

On Day 5 of the hearing, there was a detailed discussion between Bench and Shyam Divan on the issue of surveillance.

Also read the highlights from Day 1, Day 2, Day 3 and Day 4 of the hearing.

Source: twitter.com/gautambhatia88